Burrows v. Chemed Corp.
| Decision Date | 05 October 1984 |
| Docket Number | No. 83-1987,83-1987 |
| Citation | 743 F.2d 612 |
| Parties | 35 Fair Empl.Prac.Cas. 1410, 35 Empl. Prac. Dec. P 34,631 Mary Dell BURROWS, Appellant, v. CHEMED CORPORATION, d/b/a Vestal Laboratories, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Melba I. Parente, Clayton, Mo., for appellant.
John R. Truman, Spoehrer & Lemkemeier, St. Louis, Mo., for appellee.
Before ROSS, JOHN R. GIBSON and BOWMAN, Circuit Judges.
Appellant, Mary Dell Burrows (Burrows), filed suit against her employer, appellee Chemed Corporation, d/b/a Vestal Laboratories (Vestal), alleging she was denied a promotion because of her sex in violation of 42 U.S.C. Sec. 2000e. After trial the District Court *, 567 F.Supp. 978, found that Burrows had not established her claim of unlawful discrimination, and entered judgment in favor of Vestal. Burrows appeals from that judgment. Finding neither any mistake of law nor any clearly erroneous factual determination, we affirm.
In 1959 Burrows became a chemist for Vestal in St. Louis, Missouri. During her first year with Vestal, Burrows was the only quality control chemist in the company. In 1960 a quality control technician was added to the unit, and Burrows was given the title of unit head of quality control. Burrows never supervised more than one technician.
As unit head of quality control Burrows spent eighty percent of her time in the testing of products and raw materials to ensure their conformance to established standards of quality. The remainder of her time was spent performing various duties, including recordkeeping, ordering new supplies for the quality control division, performing shelf-life studies on drug products, and training new technicians. Burrows also testified that she performed some analytical work developing quality control tests in cooperation with the product development division for use by the quality control division. Her claimed degree of involvement in this activity was disputed by her supervisor, Dr. Norman Dewar, who contended that this was a very minor part of her job.
As will become clear, infra, it is important that we note certain functions which Burrows did not perform in her job. Burrows did not have the authority to resolve problems created by products which, after quality control testing, were found not to be in conformance with the established standards for that particular product. Neither did she work on the development of new products for Vestal. It is apparent from the record that Burrows' position demanded little, if any, creativity or initiative and consisted mainly of repetitive analytic tasks combined with some recordkeeping and employee training.
In 1966, Daniel Stueck became a laboratory technician for Vestal. His first nine months were spent as a laboratory technician in research and product development. He then worked for three months in the quality control division with Burrows as his supervisor. Following two years in the military, Stueck returned to Vestal in 1969, again working as a laboratory technician in the product development division. On receiving a degree in Chemistry from the University of Missouri at St. Louis in 1974, Stueck was promoted to product development chemist. In the product development division Stueck worked with the departmental director, Dr. James Wiedow, in the development of new products for Vestal. Later, in 1976 Stueck became an analytical chemist under Dr. Wiedow's direction. While working under Dr. Wiedow's direction, Stueck engaged in long-term, in-depth research projects for Vestal.
Both the product development and quality control divisions were within the technical department of Vestal. The director of the technical department was Dr. Dewar. He had held that position since 1962, receiving the title of vice president in 1968. In 1978 Dr. Dewar lost two of his managers. One of the managers lost was Dr. Wiedow, who died. The other loss was caused by the promotion of Barbara Flint, director of the microbiology division, to the position of assistant to the president of Vestal. Dr. Dewar also was adapting the functioning of his department to respond to a shift in management philosophy being implemented by Vestal's new president. This shift in philosophy was designed to make the technical department more responsive to sales and marketing initiatives within the company. Dr. Dewar felt that a reorganization of his department was needed both to strengthen the department's ability to cooperate with the sales and marketing departments in developing new products and to reduce the number of division heads reporting directly to him in the chain of command. Dr. Dewar decided to combine the existing quality control division with the analytical chemistry research division, and also to combine the two product development research groups under a single manager. This reorganization reduced the number of people reporting to Dr. Dewar by two, from six to four.
By this time, Stueck was serving as acting director of quality assurance. This position gave Stueck, in addition to his duties as an analytical chemist, the responsibility for resolving problems associated with products found not to be in conformance with established specifications by the quality control division, a function previously shared by Dr. Wiedow and Dr. Dewar. Burrows was continuing to perform her duties as unit head of quality control; a function that had changed little in the 19 years she had held it. 1
Dr. Dewar selected Stueck for the new position of manager of quality control. In explaining his selection of Stueck instead of Burrows for the position Dr. Dewar noted that, although Stueck had not been with the company as long as Burrows, during his ten years of service Stueck had worked not only in quality control, but also in product development and research. Stueck had shown considerable initiative in the pursuit of his duties, working overtime and on weekends. Dr. Wiedow had given very high marks to Stueck on his performance evaluations. Burrows, in contrast, although her job performance had been consistently satisfactory during her years as unit head of quality control, had shown little initiative or desire for advancement. Burrows also lacked the same type of in-depth, purely theoretical research experience possessed by Stueck. This research experience on Stueck's part proved decisive to Dr. Dewar and he selected Stueck for the position of manager of quality control.
Dr. Dewar informed Burrows of the new position and the promotion of Stueck on July 6, 1979. This was the first that Burrows had heard of the impending change. Burrows was told that, though she had been considered for the position, Stueck had been selected. No reason was given for her rejection and no written job description existed for the new position of manager of quality control. Burrows, however, remained in the quality control division as lead control chemist for a period of time after Stueck's promotion. She informed Dr. Dewar of her desire to advance to the position of manager of quality control. Dr. Dewar informed her that it would be necessary for her to acquire experience in analytical chemistry research and in product development in order to qualify for that position. Although the new quality control division was working more closely with the product development division, Dr. Dewar informed her that the quickest way to obtain product development experience would be to transfer to the product development division as a full-time product development chemist. Burrows did so, and has worked in that division ever since.
Burrows' initial task at trial was to establish a prima facie case of discrimination. The elements of such a case are that: (1) plaintiff is a member of a protected class, (2) plaintiff applied for or was considered for the position in question, (3) plaintiff was not hired, and (4) the position remained open and others were sought for the position. Wells v. Gotfredson Motor Co., Inc., 709 F.2d 493, 495-96 (8th Cir.1983). A fact pattern otherwise meeting the above criteria and involving the grant or denial of a promotion may establish a prima facie case under Title VII. Mortensen v. Callaway, 672 F.2d 822, 833 (10th Cir.1982). The plaintiff's prima facie case, once established, creates a rebuttable presumption of discrimination. In order to avoid the effect of this presumption, the defendant must articulate a legitimate, nondiscriminatory reason for the personnel decision in question. Once the defendant has articulated such a reason, the presumption drops from the case and the plaintiff must show that the articulated reason is a pretext for a discriminatory decision. In the final analysis, where direct evidence of unlawful discrimination is lacking, the nature of the employer's true motive is a question of credibility. As the Supreme Court has stated: "In short, the district court must decide which party's explanation of the employer's motivation it believes." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). The District Court's factual findings, including credibility determinations, are conclusive unless clearly erroneous. Jones v. International Paper Co., 720 F.2d 496, 500 (8th Cir.1983).
In this case the District Court believed Vestal's version of the incident. The District Court found that Burrows had established a prima facie case but further found that Vestal had articulated a nondiscriminatory reason for Stueck's selection. Dr. Dewar stated that he selected Stueck because of his experience in product development and research. Once this evidence was introduced, the burden shifted to Burrows to demonstrate that the proffered reason was a pretext for a discriminatory motive. After finding that Burrows had failed to carry this burden, the District Court...
To continue reading
Request your trial
-
O'CONNOR v. Peru State College
...compatibility of personalities is a legitimate consideration in the selection of personnel to fill a position. See: Burrows v. Chemed Corp., 743 F.2d 612, 616 (8th Cir.1984). Plaintiff had the burden of proving a showing of pretext on the part of the defendants by a preponderance of the "Me......
-
McGuire v. US Postal Service
...McGuire's employment, resulted from the Postal Service's hesitation in furnishing McGuire with a CA-1 Form. See, e.g., Burrows v. Chemed Corp., 743 F.2d 612 (8th Cir.1984) (redesignation of job title and temporary grade reduction without reduction in pay held not adverse action); Rooney v. ......
-
O'Connor v. Peru State College
...the athletic department, some amplification again is needed. While this can be a legitimate reason for discharge, Burrows v. Chemed Corp., 743 F.2d 612, 615-16 (8th Cir.1984), when the lack of harmony germinates from the sex discrimination, the two cannot be artificially separated. Patterso......
-
Dudley v. Wal-Mart Stores, Inc.
...Co., 882 F.2d 908, 911 (4th Cir.1989) (no discrimination in promotions since other blacks had been promoted); Burrows v. Chemed Corp., 743 F.2d 612, 617 (8th Cir. 1984) (no sex discrimination in promotions where other women were While summary judgment is often not appropriate where intent i......
-
Defendant's limine motion for employment cases involving AGE/RACE (FED)
...to show that any employee in the [branch] office had any input into the employment decision at issue. See Burrows v. Chemed Corp., 743 F.2d 612, 618 (8th Cir. Numerous courts have held that such testimony is inadmissible hearsay and its submission is reversible error. See, e.g., Mitroff v. ......
-
Defendants' Motion in Limine: Age/Race Discrimination (Federal Court)
...to show that any employee in the [branch] office had any input into the employment decision at issue. See Burrows v. Chemed Corp., 743 F.2d 612, 618 (8th Cir. Numerous courts have held that such testimony is inadmissible hearsay and its submission is reversible error. See, e.g., Mitroff v. ......
-
Defendant's limine motion for employment cases involving AGE/RACE (FED)
...to show that any employee in the [branch] office had any input into the employment decision at issue. See Burrows v. Chemed Corp., 743 F.2d 612, 618 (8th Cir. Numerous courts have held that such testimony is inadmissible hearsay and its submission is reversible error. See, e.g., Mitroff v. ......
-
Defendant's limine motion in employment cases in general (fed)
...to show that the employee had any input into the employment decision at issue affecting the Plaintiff. See Burrows v. Chemed Corp., 743 F.2d 612, 618 (8th Cir. DEFENDANT’S FINANCIAL DATA Motion: To preclude Plaintiff from introducing evidence of Defendants’ assets, revenues or income becaus......